sou 1999 1 - Regeringen

SOU 1999:1 Summary 45
Subordinated claims
Among the Committee’s other proposals, it may be noted that fines, conditional
fines, and claims as a consequence of forfeiture, or other legal effects
due to crimes shall once again be subordinated by law.
Ongoing agreements, etc.
The Committee has been charged with considering the implementation of
regulations according to which a debtor in a business reorganisation will be
able to prematurely terminate onerous, long-term agreements. The purpose
is, naturally, to facilitate a business reorganisation.
This task raises the question of whether it is reasonable that creditors who
have entered into advantageous, long-term agreements are to contribute to a
reorganisation to a greater extent than other creditors who have entered into
advantageous agreements, but who can file a claim for their entire loss upon
breach.
The Committee believes that, in this context, it is also appropriate to consider
the right which a debtor possesses pursuant to Chapter 2, section 20 of
the Business Reorganisation Act to demand future performance without
having to pay for performance received prior to the commencement of the
reorganisation proceedings. If this rule is retained, the question arises as to
whether the rule should not also be applicable in conjunction with bankruptcies.
A closely related question is whether a creditor should be permitted to set
off a claim due to him which is based on performance which was made
prior to the commencement of the insolvency proceedings and which is,
therefore, without a right of priority against a claim for payment which is
based on performance which the debtor in reorganisation or the estate in
bankruptcy made during the insolvency proceedings (such a right of set off
is currently deemed to exist regardless of whether the claims arose out of
the same contractual relationship; NJA 1916, p. 154 and 1996, p. 368).
The Committee will deal with these issues in a final report which it is
anticipated will be published in December 1999.